UCLA UCLA Pacific Basin Law Journal Title Born to Run: Can an American Samoan Become President? Permalink https://escholarship.org/uc/item/4nn7x5fw Journal UCLA Pacific Basin Law Journal, 29(2) Author Clanton, Adam Publication Date 2012 DOI 10.5070/P8292022235 Peer reviewed eScholarship.org Powered by the California Digital Library University of California ARTICLES BORN TO RUN: CAN AN AMERICAN SAMOAN BECOME PRESIDENT? Adam Clanton* ABSTRACT: American Samoa holds the unique distinction of being the only American jurisdiction whose residents have been declared by Congress to be U.S. "nationals" at birth, and not U.S. "citizens." This article examines the question of whether an American born on U.S. soil as a "national" can become president within the meaning of the "naturalborn citizen" clause of Article II, Section I of the United States Constitution, or whether Congress can, by statute, deprive an American Samoan of presidential eligibility. The article explores the uphill battle an American Samoan candi- date will face in light of Congress' broad Article IV power over U.S. territories and case law surrounding the Fourteenth Amend- ment's citizenship clause, and details legal avenues that may prove successful for presidentialeligibility. The articleargues that even if an American Samoan were technically ineligible under Article II, jurisdictionaldoctrines of political question and standing to chal- lenge presidential elections, accompanied by possible Congres- sional reluctance to nullify an election, may prevent litigationfrom arising in the first place, and allow the ineligible candidate to pre- vail in obtaining the presidency. TABLE OF CONTENTS I. INTRODUCTION ........................... 136 II. A POLITICAL AND HISTORICAL SNAPSHOT OF AMERICAN SAMOA .................... 138 * Mr. Clanton is currently an attorney with the Office of the County Counsel for the County of Orange, California. He is a former law clerk to the Court of Appeals for the Ninth Circuit, the Supreme Court of Israel, and the High Court of American Samoa. 135 136 PACIFIC BASIN LAW JOURNAL [Vol. 29:135 III. ARTICLE II AND AMERICAN SAMOAN ELIGIBILITY ............................... 141 IV. ARTICLE IV AND FOURTEENTH AMENDMENT HURDLES ................... 148 A. THE FOURTEENTH AMENDMENT AS A BAR TO AMERICAN SAMOAN ELIGIBILITY .............. 151 B. THE FOURTEENTH AMENDMENT AS A SURMOUNTABLE HURDLE...................... 154 V. STANDING AND POLITICAL QUESTION ISSUES .................................... 159 A. STANDING LIMITATIONS AND THEIR BENEFITS TO THE AMERICAN SAMOAN CANDIDATE...... 160 B. THE POLITICAL QUESTION DOCTRINE ......... .167 1. It Is Unclear How a Court Would Resolve the Political Question Issue .............. 169 2. Either Interpretation of the Political Question Issue May Benefit the Candidate ............................ 171 VI. AN ALTERNATE AVENUE FOR ARTICLE II ELIGIBILITY ..................................... 173 VII. CONCLUSION .................................... 175 I. INTRODUCTION Article II, Section 1 of the United States Constitution sets forth the well-known legal maxim that "[n]o Person except a nat- ural born Citizen . shall be eligible to the Office of President."I This section has been interpreted to stand for the general pro- position that those born on American soil may serve as presi- dent, while those who are foreign born may not.2 But the rule is not as simple as that. Indeed, if one happens to have had the fortune of being born in the U.S. Territory of American Samoa, he is born on American soil, but strangely, may not be eligible under Article II. American Samoans hold the unique distinction of being the only Americans in any U.S. state or territory, whom Congress has given the status of U.S. "national" and not U.S. "citizen" at birth.3 As Justice Ruth Bader Ginsburg has ob- 1. U.S. CONs-r. art. II, § 1, cl. 4. 2. See Malinda L. Seymore, The Presidency and the Meaning of Citizenship, 2005 BYU L. REv. 927, 928 (2005) ("[T]he Constitution preserves the presidency for those born within the boundaries of the United States."); Christina S. Lohman, Pres- idential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 GONZ. L. REV. 349, 349 (2000) (observing that the presidency has been available to those "born within the territory of the United States."). 3. See 8 U.S.C. §§ 1408 (2006), § 1101(a)(29) (2006) (declaring American Samoans as "nationals" and "not citizens." Congress has granted citizenship status to all other territorial residents.). Compare with 8 U.S.C. § 1402 (2006) (persons born in Puerto Rico are citizens); 8 U.S.C. § 1403 (2006) (persons born in Panama 2012] BORN TO RUN 137 served, "one can be a national of the United States and yet not a citizen. The distinction has little practical impact today, however, for the only remaining noncitizen nationals are residents of American Samoa .... While Justice Ginsburg is correct that only a small subset of the American population is affected by this classification, to the extent that an American Samoan ever decides to run for presi- dent, and presents a viable candidacy, she misses the mark in her conclusion that the distinction has little practical impact, for such a candidacy directly calls into question how this bizarre statutory classification would fare against the constitutional backdrop of Article II. This article examines the question of whether a per- son born in the United States as a "national" - that is, a person born in the U.S. Territory of American Samoa - can become President of the United States, and concludes that, despite an uphill legal battle, there is a legal pathway to obtaining the presidency. After providing a historical and cultural backdrop of Ameri- can Samoa in Section II of this article, Section III examines Arti- cle II and the legal viability of an American Samoan candidacy by looking at English common law, Supreme Court precedent, and the "original meaning" of the phrase at the time of its imple- mentation. This section argues that when considered in isolation, Article II can be broadly construed to include all those born on American soil owing allegiance to the U.S. government, includ- ing those born as U.S. "nationals" in American Samoa. Section IV highlights a different set of legal obstacles, demonstrating that when Article II is considered in conjunction with the meaning of citizenship under the Fourteenth Amendment and Congress' Ar- ticle IV powers, Congress may have the authority to restrict who is regarded as a citizen by statute, and thus limit presidential eli- gibility under Article II. While the section explores the difficul- ties presented by the Fourteenth Amendment, it shows that these difficulties may not be insurmountable, and offers a legal avenue by which an American Samoan candidacy remains permissible. Section V shows that even if an American Samoan were barred from the presidency as a technical legal matter, he may find that the courts will not be an obstacle. Looking at the frivolous voter and elector lawsuits that attacked the "natural born Citizen" sta- Canal Zone are citizens); 8 U.S.C. § 1406 (2006) (persons born in the U.S. Virgin Islands are citizens); 8 U.S.C. § 1407 (2006) (persons born in Guam are citizens). 4. Miller v. Albright, 523 U.S. 420, 467 n.2 (1998) (Ginsburg, J., dissenting) (Justice Ginsburg also mentioned Swains Island, but Swains is itself part of Ameri- can Samoa.) See 48 U.S.C. § 1662 (2006) ("The sovereignty of the United States over American Samoa is extended over Swains Island, which is made a part of American Samoa."). 138 PACIFIC BASIN LAW JOURNAL [Vol. 29:135 tus of Barack Obama and John McCain, this section demon- strates that the courts may choose not to intervene into the issue because of standing problems, the political question doctrine, and because the Electoral College or Congress may find it politi- cally inexpedient to overturn the will of the people. It may seem absurd that someone born as an American can face so many hurdles in the quest to become president based on the simple and often overlooked problem that he or she has been statutorily classified as a "national" at birth. While the article hopes to bring to light the injustice posed by such a unique classi- fication, it ultimately attempts to demonstrate that even amidst the status quo, a person born in American Samoa has a legal claim to the U.S. presidency. II. A POLITICAL AND HISTORICAL SNAPSHOT OF AMERICAN SAMOA Most Americans know little, if anything, about the distant U.S. territory of American Samoa. American Samoa is an unin- corporated territory located 2,500 miles southwest of Hawaii, 1,800 miles northeast of New Zealand, and is the only U.S. terri- tory south of the equator.5 The territory is admittedly small both geographically and demographically. Although the American Samoan land group is comprised of a total of five islands and two atolls, ninety-five percent of the territory's approximately 65,000 residents live on the island of Tutuila, with the whole territory comprising an area slightly larger than Washington, D.C. 6 His- torically, the Polynesian islands that make up present-day Ameri- can Samoa were once the disputed territory of the United States, Great Britain, and Germany, but an 1889 treaty among these na- tions led Great Britain and Germany to renounce any claims of sovereignty.7 On April 17, 1900, the United States further ce- mented its sovereign control over American Samoa by entering into a treaty with the local American Samoan chiefs of Tutuila, where those leaders agreed to cede "all sovereign rights" to the United States, and declared that they and their heirs would "obey and owe allegiance to the Government of the United 5. See U.S. CENSUS BUREAU, Brief History of the Island Areas (last visited July 25, 2012), http://www.census.gov/population/www/proas/pr-ia-hist.html. 6. See id.; CIA, TIE WORLD FACTBOOK: AMERICAN SAMOA (2009) (last vis- ited July 25, 2012), https://www.cia.gov/library/publications/the-world-factbook/geos/ aq.html.